Citation Nr: 9915763
Decision Date: 06/08/99 Archive Date: 06/21/99
DOCKET NO. 98-05 029 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for residuals of head
trauma, concussion and fractured skull.
2. Entitlement to service connection for a deviated nasal
septum.
3. Entitlement to service connection for a bilateral knee
disorder.
4. Entitlement to service connection for a right hip
disorder.
5. Entitlement to service connection for residuals of heat
stroke and heat exhaustion.
6. Entitlement to service connection for residuals of
epididymitis.
7. Entitlement to service connection for residuals of bullet
hole to right leg.
8. Entitlement to service connection for fungal infections
of the hands and feet.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. J. Nottle, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1973 to
November 1977. His appeal ensues from a November 1997 rating
decision of the Department of Veterans Affairs (VA) Regional
Office in Cleveland, Ohio (RO).
The Board of Veterans' Appeals (Board) notes that the
veteran, in his application for compensation and in
statements received in November 1997 and January 1998, raised
the issues of entitlement to service connection for residuals
of a stomach injury, for residuals of Agent Orange exposure,
for dizzy spells and nausea due to bomb radiation, and for
delayed stress syndrome. These matters are referred to the
RO for appropriate action.
FINDINGS OF FACT
1. There is no competent medical evidence establishing that
the veteran currently has residuals of head trauma, a
concussion and fractured skull, residuals of heat stroke and
heat exhaustion, residuals of epididymitis, residuals of a
bullet hole to the right leg, or a fungal infection of the
hands.
2. There is no competent medical evidence linking a deviated
nasal septum, a bilateral knee disorder, a right hip
disorder, or a fungal infection of the feet to the veteran's
period of active service.
CONCLUSIONS OF LAW
1. The claim of entitlement to service connection for
residuals of head trauma, concussion and fractured skull is
not well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
2. The claim of entitlement to service connection for a
deviated nasal septum is not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991).
3. The claim of entitlement to service connection for a
bilateral knee disorder is not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991).
4. The claim of entitlement to service connection for a
right hip disorder is not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991).
5. The claim of entitlement to service connection for
residuals of heat stroke and heat exhaustion is not well
grounded. 38 U.S.C.A. § 5107(a) (West 1991).
6. The claim of entitlement to service connection for
residuals of epididymitis is not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991).
7. The claim of entitlement to service connection for
residuals of bullet hole to right leg is not well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
8. The claim of entitlement to service connection for fungal
infections of the hands and feet is not well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran contends that he is entitled to service
connection for multiple disorders that developed during
military service, and for residuals of in-service injuries.
Initially, the Board must determine whether a veteran has
presented evidence sufficient to justify a belief by a fair
and impartial individual that a claim well grounded. See
38 U.S.C.A. § 5107(a) (West 1991). In the absence of
evidence of a well-grounded claim, there is no duty to assist
the veteran in developing the facts pertinent to his claim,
and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467-
1468 (Fed. Cir. 1997).
To establish that a claim for service connection is well
grounded, the record must include lay or medical evidence,
whichever is appropriate in the particular case,
demonstrating that a disease or injury was incurred or
aggravated during active service, and medical evidence
showing that the veteran currently has a disability, and that
a nexus exists between that disability and the in-service
injury or disease. Id. at 1467-1468. A nexus may be
presumed in a case in which a veteran served for 90 days or
more during a period of war or after January 1, 1947, and a
chronic disease such as osteoarthritis manifests to a
compensable degree within one year of service. 38 C.F.R. §§
3.307, 3.309 (1998).
A claimant may also establish a well-grounded claim for
service connection under the chronicity provision of
38 C.F.R. § 3.303(b), which is applicable where evidence,
regardless of its date, shows that a veteran had a chronic
condition in service or during an applicable presumption
period, and that that same condition currently exists. Such
evidence must be medical unless the condition at issue is a
type as to which, under case law, lay observation is
considered competent to demonstrate its existence. If the
chronicity provision is not applicable, a claim still may be
well grounded pursuant to the same regulation if the evidence
shows that the condition was observed during service or any
applicable presumption period and continuity of
symptomatology was demonstrated thereafter, and includes
competent evidence relating the current condition to that
symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98
(1997).
A. Residuals of Head Trauma, Concussion and Fractured Skull
At a hearing held before the undersigned Board Member in
August 1998, the veteran asserted that two head injuries in
service decreased his cognitive skills and IQ and caused him
to have frequent headaches. He testified that the injuries
occurred during basic training, when his chief drill
instructor hit him in the forehead with a rifle, and at
Twenty-Nine Palms, when he was pistol whipped while working
as an undercover investigator in a motorcycle gang.
The service medical records do not confirm the incidents
described. According to the October 1973 and September 1977
reports of enlistment and separation examinations, however,
the veteran fell backward and hit his head at age 15, had a
concussion at age 16, had headaches associated with otitis
externa and over zealous Q-tip use in 1975, and suffered a
mild concussion while playing football in 1975. Regardless,
there is no evidence, beyond the veteran's statements, that
he currently has residuals of the alleged injuries or of the
reported headaches and concussion. Since service, he has
been seen by both private and VA physicians, none of whom has
diagnosed the veteran with decreased cognitive skills and IQ,
frequent headaches, or any other residual of head trauma.
Moreover, during a September 1997 VA examination, the veteran
had a normal neurological examination. The examiner who
conducted the examination scheduled the veteran for further
testing, but the veteran failed to appear.
As a lay person, the veteran is not qualified to diagnose
residuals of head trauma; therefore, his statements, alone,
do not constitute competent medical evidence of a current
disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-
95 (1992) (holding that lay persons are not competent to
offer medical opinions). Inasmuch as the record lacks
competent medical evidence establishing that the veteran
currently has residuals of head trauma, a concussion and
fractured skull, this claim must be denied as not well
grounded.
B. Deviated Nasal Septum
The veteran claims that he currently has breathing problems
as a result of a broken nose sustained in service when
members of a motorcycle gang beat him. Service medical
records do not confirm that the veteran broke his nose in
service. However, in September 1997, a VA examiner diagnosed
the veteran with a deviated nasal septum, post-traumatic,
based on the veteran's report of in-service trauma.
Evidentiary assertions must be accepted as true for purposes
of determining whether a claim is well grounded except when
the assertion is inherently incredible or when the fact
asserted is beyond the competence of the person making the
assertion. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995)
(quoting Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995)).
In this case, the veteran is competent to report that he was
beaten in service, but he is not competent to establish that
his deviated septum resulted from a broken nose in service.
Id.; see also Grover v. West, 12 Vet. App. 109, 112-113
(1999). Moreover, the VA examiner's opinion, which links the
deviated nasal septum to trauma (presumably the in-service
trauma reported by the veteran), is unreliable and does not
constitute "competent medical evidence" of a nexus. It is
based solely on the veteran's opinion regarding the etiology
of his condition, and is unenhanced by additional medical
comment. Id.
The record lacks competent medical evidence establishing that
the veteran's deviated nasal septum is related to a broken
nose sustained in service; therefore, this claim must be
denied as not well grounded.
C. Bilateral Knee Disorder/Right Hip Disorder
The veteran claims that he developed bilateral knee and right
hip disorders from injuries sustained while playing football
during service. Service medical records show that the
veteran received treatment for left knee pain and hurt legs
in 1973 and 1974, but on separation examination he had no
related complaints.
Private medical records and a September 1997 report of VA
examination establish that the veteran currently has
bilateral knee strains and osteoarthritis and bursitis of the
right hip. However, these records do not provide the
necessary medical link between these disorders and the in-
service knee and right hip injuries, and, in fact, suggest
that they are due to intervening events. During private
medical treatment in December 1995 and March 1996, the
veteran reported that he injured his knees and fractured his
left femur in a 1980 accident, and hurt his right hip and
broke his knees against the dashboard in a 1994 accident.
The record clearly lacks competent medical evidence linking
the veteran's bilateral knee and right hip disorders to his
period of service, or demonstrating that the veteran's right
hip osteoarthritis manifested within one year of discharge.
Moreover, even assuming that the veteran's documented in-
service bilateral knee and right hip symptoms continued to
affect him until separation and following discharge, the
record also lacks competent medical evidence linking the
current disorders to any symptomatology exhibited following
discharge. In light of the foregoing, this claim must be
denied as not well grounded.
D. Residuals of Heat Stroke, Heat Exhaustion, and Bullet
Hole to Right Leg
The veteran contends that he gets dizzy and lightheaded due
to heat stroke and exhaustion suffered during service at
Twenty-Nine Palms and in Hawaii. He also claims that while
he was on guard duty in Hawaii, a bullet grazed him in the
right leg. Despite being evaluated by private physicians and
a VA examiner after service, the record contains no medical
diagnosis of residuals of heat stroke and exhaustion or of a
bullet hole to the right leg. In light of the foregoing,
these claims must be denied as not well grounded.
E. Residuals of Epididymitis
Service medical records confirm the veteran's contention that
he had epididymitis in service. This disorder necessitated
two hospitalizations in April 1976, and recurred in August
1977. At separation, however, the veteran had no related
complaints. He saw private physicians following discharge;
but he never complained of epididymitis according to
available records of that treatment. In fact, during the
September 1997 VA examination, he reported that his in-
service epididymitis had subsided with no recurrence. The VA
examiner found testes of normal consistency and no tenderness
on palpation. He diagnosed recurrent epididymitis only by
history.
Contrary to his statements made during his VA examination,
the veteran testified at his hearing that he experiences
constant throbbing pain as a result of the in-service
epididymitis. In any event, inasmuch as the record contains
no competent medical evidence objectively confirming current
residuals of this disorder, this claim must be denied as not
well grounded.
F. Fungal Infections of the Hands and Feet
The veteran claims that he has had fungal infections of the
hands and feet since he served on active duty. Service
medical records show treatment for multiple skin problems,
none of which involved the veteran's hands or feet.
Regardless, no post-service private or VA physician has
diagnosed the veteran with fungal infection of the hands. He
was diagnosed with fungal infection of the feet and toenails
in February and March 1997, but an opinion was not rendered
linking that disorder to service.
The record lacks competent medical evidence establishing that
the veteran currently has fungal infection of the hands, or
linking his fungal infection of the feet to his period of
active service. Therefore, this claim must be denied as not
well grounded.
G. Conclusion
Since the veteran has not met his initial burden of
submitting evidence of well-grounded claims, VA is under no
duty to assist him in developing the facts pertinent to his
claims. See Epps, 126 F.3d at 1468. Pursuant to the VA's
duty to notify, see 38 C.F.R. § 5103(a); McKnight v. Gober,
131 F.3d 1483, 1484-1485 (Fed. Cir. 1997), however, the Board
notes that there are possibly pertinent treatment records
missing from the veteran's claims file. The RO attempted to
secure some of these records in January 1998, but was unable
to do so after the veteran failed to respond to a May 1998
request for additional information. The veteran also
testified that several private physicians had told him that
some of his conditions were related to service. If the
veteran obtains these records or medical statements in the
future, the new evidence might establish that his claims are
well grounded and may be submitted to the RO
ORDER
Service connection for residuals of head trauma, concussion
and fractured skull, a deviated nasal septum, a bilateral
knee disorder, a right hip disorder, residuals of heat stroke
and heat exhaustion, residuals of epididymitis, residuals of
bullet hole to right leg, and fungal infections of the hands
and feet is denied.
CHARLES E. HOGEBOOM
Member, Board of Veterans' Appeal